Com. v. Johnson, C. ( 2020 )


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  • J-A06019-20
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :         PENNSYLVANIA
    Appellee                :
    :
    v.                             :
    :
    CHRISTOPHER JOHNSON                        :
    :
    Appellant               :        No. 343 EDA 2018
    Appeal from the Judgment of Sentence December 20, 2017
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0008525-2016
    BEFORE:      STABILE, J., KING, J., and STEVENS, P.J.E.*
    MEMORANDUM BY KING, J.:                                    FILED APRIL 06, 2020
    Appellant, Christopher Johnson, appeals from the judgment of sentence
    entered in the Philadelphia County Court of Common Pleas, following his bench
    trial convictions for resisting arrest, possession of a firearm prohibited,
    firearms not to be carried without a license, and carrying firearms in public in
    Philadelphia.1 We affirm.
    In its opinion, the trial court sets forth the relevant facts of this case, in
    part, as follows:
    On August 16, 2016, between 10:40 a.m. and 10:45 a.m.,
    Philadelphia Police Officer Joseph Rauchut and his partner,
    Officer [Paul] Sanchez, received a radio call directing them
    to the 1200 block of Lycoming Street for a person with a
    gun. The call described the suspect as a Hispanic male
    ____________________________________________
    *   Former Justice specially assigned to the Superior Court.
    1   18 Pa.C.S.A. §§ 5104, 6105(a)(1), 6106(a)(1), and 6108, respectively.
    J-A06019-20
    wearing a green tee shirt, blue jeans, and possibly high on
    narcotics. Officer Rauchut testified that the location is in the
    25th police district which is known to be a high-crime area
    with high drug activity and extreme violence.             While
    responding to the call at Lycoming Street and Old York
    Road, Officer Rauchut spoke with another officer who
    advised that a civilian reported the suspect to be traveling
    northbound on Old York Road.
    After surveying the surrounding area for approximately four
    minutes, Officer Rauchut observed…Appellant in the middle
    of the highway on the 1300 block of Lycoming Street.
    Officer Rauchut testified that…Appellant was standing
    outside of a parked car and was yelling at a man who was
    sitting inside the parked car. Appellant was sweating
    profusely and had “veins popping out of his neck.” The man
    in the car appeared “confused.” …Appellant was wearing a
    navy-blue shirt, blue jeans, and a sweatshirt wrapped
    around his waist. The officers then turned down Lycoming
    Street in a marked patrol car. As the officers approached,
    the patrol car’s sirens and lights were off.
    (Trial Court Opinion, filed May 30, 2019, at 3) (internal citations to record
    omitted).   The officer’s observations of Appellant, training, and four years’
    experience as a police officer entirely in the 25th police district, convinced
    Officer Rauchut that Appellant was under the influence of phencyclidine
    (“PCP”) or synthetic marijuana (“K2”).
    The officers exited the patrol vehicle, without guns drawn.           Officer
    Rauchut said to Appellant, “Hey, what’s going on, man? You want to come
    over to my car?” Appellant complied and approached the car. As Appellant
    walked toward the car, Officer Rauchut noticed a bulge at Appellant’s
    waistband, where a sweatshirt was wrapped around his waist. Based upon
    his training and experience, Officer Rauchut believed the bulge in Appellant’s
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    waistband was a gun.
    The trial court opinion continues:
    … Officer Rauchut asked…Appellant to place his hands on
    the vehicle in order to conduct a protective search. Despite
    repeated requests, …Appellant refused to place his hands on
    the car and instead repeatedly held them about a foot above
    the front of the officers’ patrol car. Officer Rauchut then
    grabbed…Appellant’s arm to place it behind his back
    wherein…Appellant reached into his waistband and grabbed
    a gun.
    (Id. at 4) (internal citations to record omitted). Officer Rauchut attempted to
    pry the gun from Appellant’s hand and simultaneously apprehend Appellant.
    Appellant physically resisted Officer Rauchut’s grasp for approximately 45
    seconds. Meanwhile, Appellant repeatedly screamed at the officers that he
    did not want to go back to jail. Appellant threatened the officers, saying, “Get
    my hands off the gun, see what happens.” When the officers instructed him
    to stop resisting, Appellant responded, “You’re going to have to kill me.”
    Eventually, Officer Rauchut placed Appellant in a bear hug and isolated the
    hand in which Appellant held the gun, allowing Officer Sanchez to take the
    gun from Appellant.    A third officer, Officer John Durando, approached to
    assist. Based on his observation of Appellant’s struggle with Officers Rauchut
    and Sanchez, his training, and his five and one-half years’ experience as a
    police officer, Officer Durando also believed Appellant was under the influence
    of narcotics or possibly PCP or K2. Officer Durando tased Appellant, and the
    officers were then able to arrest Appellant.
    Procedurally, Appellant filed a motion to suppress the firearm on May 1,
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    2017.     On July 24, 2017, the court conducted a suppression hearing and
    denied Appellant’s motion. That same day, Appellant proceeded to a bench
    trial, and the court convicted Appellant of one count each of resisting arrest,
    possession of a firearm prohibited, firearms not to be carried without a license,
    and carrying firearms in public in Philadelphia. The court sentenced Appellant
    on December 20, 2017, to an aggregate term of ten (10) to twenty (20) years’
    incarceration.
    On January 16, 2018, Appellant filed a timely notice of appeal.      The
    court ordered Appellant on January 18, 2018, to file a concise statement of
    errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant complied on
    February 26, 2018, following an extension. On January 19, 2019, Appellant
    filed in this Court an application for remand to allow him to file a supplemental
    Rule 1925(b) statement.       This Court granted Appellant’s application and
    remanded to the trial court on February 6, 2019.        On February 26, 2019,
    Appellant filed a supplemental concise statement.
    Appellant raises two issues for our review:
    DID NOT THE TRIAL COURT ERR BY FAILING TO SUPPRESS
    THE GUN SEIZED FROM APPELLANT WHERE HE WAS
    STOPPED, DETAINED, SEARCHED, AND ARRESTED IN THE
    ABSENCE OF REASONABLE SUSPICION OR PROBABLE
    CAUSE?
    WAS NOT THE EVIDENCE INSUFFICIENT TO FIND
    APPELLANT GUILTY BEYOND A REASONABLE DOUBT OF THE
    OFFENSE OF RESISTING ARREST, WHERE HE WAS
    UNLAWFULLY STOPPED, DETAINED, SEARCHED AND
    ARRESTED, AND POLICE WERE NOT EFFECTING A LAWFUL
    ARREST OR ANY OTHER DUTY AS REQUIRED BY 18
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    PA.C.S.A. § 5104 WHEN APPELLANT ALLEGEDLY VIOLATED
    [SECTION] 5104?
    (Appellant’s Brief at 4).
    In his issues combined, Appellant argues the police officers stopped him
    based on a flash report lacking sufficient corroboration. Appellant asserts the
    flash description was vague, as it did not describe his height, weight, and facial
    hair or tattoos. Appellant avers his navy-blue shirt did not match the green
    shirt provided in the flash. Appellant claims the officers did not observe indicia
    of criminal activity, such as violence or a crowd, when they encountered him.
    Appellant maintains that the facts of having a sweatshirt around Appellant’s
    waist, a sweaty appearance, and protruding neck veins do not suggest
    criminality or abuse of drugs. Appellant adds that yelling at an individual in a
    parked car also does not suggest criminal activity is afoot. Appellant stresses
    the officers saw the bulge at his waist only after he complied with their demand
    to approach. Appellant suggests the trial court incorrectly stated in its opinion
    that the officers exited their vehicle after they told Appellant to walk toward
    them. Appellant compares Officer Rauchut’s testimony that the officers exited
    the patrol vehicle before they commanded Appellant to approach the car.
    Appellant contends the officers unlawfully detained him when they exited the
    patrol vehicle and ordered Appellant to walk toward them. Appellant insists
    the officers did not have reasonable suspicion criminal activity was occurring
    until after he approached them. As a result, Appellant contends the officers’
    recovery of the gun from Appellant’s person was unlawful.
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    Appellant adds the Commonwealth failed to prove the officers lawfully
    arrested Appellant.    Appellant contends the officers lacked reasonable
    suspicion to search Appellant and probable cause to arrest him. Appellant
    asserts the trial evidence was insufficient to convict him of resisting arrest.
    For these reasons, Appellant concludes this Court should vacate the judgment
    of sentence. We disagree.
    Appellate review of an order that denied a motion to suppress evidence
    is as follows:
    We may consider only the Commonwealth’s evidence and so
    much of the evidence for the defense as remains
    uncontradicted when read in the context of the record as a
    whole. Where the record supports the factual findings of
    the trial court, we are bound by those facts and may reverse
    only if the legal conclusions drawn therefrom are in error.
    An appellate court, of course, is not bound by the
    suppression court's conclusions of law.
    Commonwealth v. Luczki, 
    212 A.3d 530
    , 541-42 (Pa.Super. 2019) (quoting
    Commonwealth v. Arter, 
    637 Pa. 541
    , 546-47, 
    151 A.2d 149
    , 153 (2016)).
    “It is within the suppression court’s sole province as factfinder to pass on the
    credibility of witnesses and the weight to be given their testimony.” 
    Luczki, supra
    at 542 (quoting Commonwealth v. Clemens, 
    66 A.3d 373
    , 378
    (Pa.Super. 2013)).
    The Fourth Amendment to the United States Constitution
    and Article I, Section 8 of the Pennsylvania Constitution
    guarantee the right of the people to be secure in their
    persons,     houses,     papers,  and    possessions   from
    unreasonable searches and seizures. “To secure the right
    of citizens to be free from unreasonable search and seizure,
    courts in Pennsylvania require law enforcement officers to
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    demonstrate ascending levels of suspicion to justify their
    interactions with citizens to the extent those interactions
    compromise individual liberty.”       Commonwealth v.
    Hampton, 
    204 A.3d 452
    , 456 (Pa.Super. 2019). Because
    interactions between law enforcement and the general
    citizenry are widely varied, search and seizure law looks at
    how the interaction is classified and if a detention has
    occurred.
    Our Supreme Court in Commonwealth v. Adams, ___ Pa.
    ___, ___, A.3d 1195, 1199-1200 (2019) recently reiterated
    the general levels or classifications of contacts between the
    police and the citizenry and reviewed long-standing
    precedent on the topic as follows:
    The first is a mere encounter, sometimes referred to
    as a consensual encounter, which does not require the
    officer to have any suspicion that the citizen is or has
    been engaged in criminal activity. This interaction
    also does not compel the citizen to stop or respond to
    the officer. A mere encounter does not constitute a
    seizure, as the citizen is free to choose whether to
    engage with the officer and comply with any requests
    made or, conversely, to ignore the officer and
    continue on his or her way. The second type of
    interaction, an investigative detention, is a temporary
    detention of a citizen. This interaction constitutes a
    seizure of a person, and to be constitutionally valid
    police must have a reasonable suspicion that criminal
    activity is afoot. The third, a custodial detention, is
    the functional equivalent of an arrest and must be
    supported by probable cause. A custodial detention
    also constitutes a seizure.
    No bright lines separate these types of [interactions],
    but the United States Supreme Court has established
    an objective test by which courts may ascertain
    whether a seizure has occurred to elevate the
    interaction beyond a mere encounter. The test, often
    referred to as the “free to leave test,” requires the
    court to determine whether, taking into account all of
    the circumstances surrounding the encounter, the
    police conduct would have communicated to a
    reasonable person that he was not at liberty to ignore
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    the police presence and go about his business.
    [W]henever a police officer accosts an individual and
    restrains his freedom to walk away, [the officer] has
    “seized” that person.
    Id. at ___, 205 A.3d at 1199-1200 (most internal citations
    and quotation marks omitted). Whether a seizure has
    occurred, under the circumstances related in the undisputed
    testimony at a suppression hearing, is a question of law
    involving a plenary scope of review. Commonwealth v.
    Au, 
    615 Pa. 330
    , 337, 
    42 A.3d 1002
    , 1006 (2012). Our
    standard of review regarding questions of law is de novo.
    
    Luczki, supra
    at 542-43 (some internal citations and quotation marks
    omitted).
    When initially evaluating the level of interaction between law
    enforcement and a citizen to determine if a seizure
    occurred, “courts conduct an objective examination of the
    totality     of     the     surrounding        circumstances.”
    Commonwealth v. Lyles, 
    626 Pa. 343
    , 350, 
    97 A.3d 298
    ,
    302 (2014).
    The totality-of-the-circumstances test is ultimately
    centered on whether the suspect has in some way
    been restrained by physical force or show of coercive
    authority. Under this test, no single factor controls
    the ultimate conclusion as to whether a seizure
    occurred—to guide the inquiry, the United States
    Supreme Court and this Court have employed an
    objective test entailing a determination of whether a
    reasonable person would have felt free to leave or
    otherwise terminate the encounter.                [W]hat
    constitutes a restraint on liberty prompting a person
    to conclude that he is not free to “leave” will vary, not
    only with the particular police conduct at issue, but
    also with the setting in which the conduct occurs.
    This Court and the United States Supreme Court have
    repeatedly held a seizure does not occur where
    officers merely approach a person in public and
    question the individual or request to see identification.
    Officers may request identification or question an
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    individual so long as the officers do not convey a
    message that compliance with their requests is
    required. Although police may request a person’s
    identification, such individual still maintains the right
    to ignore the police and go about his business.
    Id. at 350-51,
    97 A.3d at 302-03 (internal citations and
    quotation marks omitted).
    To decide whether a seizure has occurred, a court
    must consider all the circumstances surrounding the
    encounter to determine whether the demeanor and
    conduct of the police would have communicated to a
    reasonable person that he…was not free to decline the
    officer’s request or otherwise terminate the
    encounter. A variety of factors may influence this
    determination, including the threatening presence of
    several officers, the display of a weapon by an officer,
    some physical touching of the person of the citizen, or
    the use of language or tone of voice indicating that
    compliance with the officer’s request might be
    compelled. As our High Court has explained, subtle
    factors as the demeanor of the police officer, the
    location of the confrontation, the manner of
    expression used by the officer in addressing the
    citizen, and the content of the interrogatories or
    statements must be considered.
    
    Hampton, supra
    at 457. In addition:
    This Court has also set forth the following non-
    exclusive list of factors:
    the number of officers present during the
    interaction; whether the officer informs the
    citizen [he is] suspected of criminal activity; the
    officer’s demeanor and tone of voice; the
    location and timing of the interaction; the visible
    presence of weapons on the officer; and the
    questions asked. Otherwise inoffensive contact
    between a member of the public and the police
    cannot, as a matter of law, amount to a seizure
    of that person.
    -9-
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    Commonwealth v. Newsome, 
    170 A.3d 1151
    , 1155
    (Pa.Super. 2017) (internal citations omitted). Our Supreme
    Court has also stated:
    We recognize the conceptual difficulties inherent in
    the administration of the reasonable-person standard.
    Although the test is cast in objective terms, absent
    empirical proofs, there remains substantial room for
    reasonable disagreement concerning how such a
    hypothetical person might feel in any given set of
    circumstances.      Such differences have been
    manifested, at both the federal and state level, in
    many divided opinions on the subject. Nevertheless,
    the High Court has settled on an approach allocating
    very modest weight to the possibility for psychological
    coercion arising from a fairly wide range of police
    conduct which may be regarded as being appropriate
    to and inherent in the circumstances facilitating the
    interaction.   Cf. Wayne R. LaFave, Search and
    Seizure: A Treatise on the Fourth Amendment §
    9.4(a), at 425 (4th ed. 2004) (observing that “the
    confrontation is a seizure only if the officer adds to
    those inherent pressures by engaging in conduct
    significantly beyond that accepted in social
    intercourse[,]” which include moral and instinctive
    pressures to cooperate).
    
    Au, supra
    at 338-39, 
    42 A.3d 1007-08
    (most internal
    citations   omitted).      Thus,  all   law   enforcement
    communications with a citizen do not automatically
    constitute detentions. Lyles, supra at 
    354, 97 A.3d at 304
    -
    05. With respect to the show of authority needed for a
    detention, the circumstances must present some level of
    coercion, beyond the officer’s mere employment, that
    conveys a demand for compliance or threat of tangible
    consequences from refusal. Commonwealth v. Young[,
    E.], 
    162 A.3d 524
    , 529 (Pa.Super. 2017) (citing Lyles,
    supra at 
    353-54, 97 A.3d at 304
    ).
    An investigative detention, unlike a mere encounter,
    constitutes a seizure of a person and thus activates
    the protections of Article 1, Section 8 of the
    Pennsylvania Constitution.          To institute an
    investigative detention, an officer must have at least
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    a reasonable suspicion that criminal activity is afoot.
    Reasonable suspicion requires a finding that based on
    the available facts, a person of reasonable caution
    would believe the intrusion was appropriate.
    *     *      *
    Reasonable suspicion exists only where the officer is
    able to articulate specific observations which, in
    conjunction with reasonable inferences derived from
    those observations, led him reasonably to conclude,
    in light of his experience, that criminal activity was
    afoot and that the person he stopped was involved in
    that activity. Therefore, the fundamental inquiry of a
    reviewing court must be an objective one, namely,
    whether the facts available to the officer at the
    moment of intrusion warrant a [person] of reasonable
    caution in the belief that the action taken was
    appropriate.
    Commonwealth v. Jones, 
    874 A.2d 108
    , 116 (Pa.Super.
    2005) (internal citations omitted). The question of whether
    reasonable suspicion existed at the time of an investigatory
    detention must be answered by examining the totality of the
    circumstances to determine whether there was a
    particularized and objective basis for suspecting the
    individual stopped of criminal activity.
    In making this determination, we must give due
    weight…to the specific reasonable inferences the
    police officer is entitled to draw from the facts in light
    of his experience.          Also, the totality of the
    circumstances test does not limit our inquiry to an
    examination of only those facts that clearly indicate
    criminal conduct. Rather, even a combination of
    innocent facts, when taken together, may warrant
    further investigation by the police officer.
    Commonwealth v. Young[, R.], 
    904 A.2d 947
    , 957
    (Pa.Super. 2006), appeal denied, 
    591 Pa. 664
    , 
    916 A.2d 633
           (2006) (internal citations and quotation marks omitted).
    “[W]hether the defendant was located in a high crime
    area…supports the existence of reasonable suspicion.”
    Commonwealth v. Foglia, 
    979 A.2d 357
    , 361 (Pa.Super.
    2009) (en banc), appeal denied, 
    605 Pa. 694
    , 
    990 A.2d 727
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    (2010) (internal citations omitted).
    
    Luczki, supra
    at 543-45 (some internal citations and quotation marks
    omitted).
    “Probable cause is made out when the facts and
    circumstances which are within the knowledge of the officer
    at the time of the arrest, and of which [the officer] has
    reasonably trustworthy information, are sufficient to
    warrant [an officer] of reasonable caution in the belief that
    the suspect has committed or is committing a crime.”
    Commonwealth v. Thompson, 
    604 Pa. 198
    , 203, 
    985 A.2d 928
    , 931 (2009) (internal quotation marks omitted).
    The question we ask is not whether the officer’s belief
    was correct or more likely true than false. Rather, we
    require only a probability, and not a prima facie
    showing, of criminal activity. In determining whether
    probable cause exists, we apply a totality of the
    circumstances test.
    Id. (emphasis in
    original) (internal citations and quotation
    marks omitted). The officer’s training and experience are a
    factor in determining probable cause but relevant to the
    issue only if there is a nexus between those skills and the
    search and seizure of the person and/or evidence.
    Id. at 210,
    985 A.2d at 935.
    “Although cases involving similar or comparable seizure
    determinations may serve as guideposts, a suppression
    court must independently employ the totality-of-the-
    circumstances test in determining whether a seizure
    occurred.” Lyles, supra at 
    354, 97 A.3d at 305
    . See, e.g.,
    id. (holding that
    no single factor controls in seizure-of-
    person analysis; police officer’s request for identification
    alone does not raise escalatory inference of detention;
    courts must make independent examination of totality of
    circumstances surrounding interaction to determine if
    seizure occurred; concluding no “seizure” occurred in
    absence of credible evidence of physical restraint, weapons
    used, blockade or obstruction of citizen’s ability to walk
    away; tenor of interaction was not inherently coercive); 
    Au, supra
    (holding unrebutted testimony of officer established
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    only mere encounter with Appellee had occurred, when
    officer interacted with Appellee in public, did not activate
    emergency lights, did not block Appellee’s car, did not
    brandish weapon, make intimidating movement or
    overwhelming show of force, threat, or command, or speak
    in authoritative tone; use of officer’s headlights and
    flashlight was in furtherance of officer’s safety and within
    ambit of acceptable, non-escalatory factors); 
    Newsome, supra
    (holding defendant was not “seized” during his initial
    interaction with officer, where officer responded to radio call
    in marked cruiser and saw Appellee walk away from group
    of males; officer exited his vehicle and told Appellee to
    “come here,” but Appellee refused and continued to walk
    away; officer then observed Appellee remove object and
    place it in nearby flowerpot; object later recovered was
    firearm); Young[, 
    E.], supra
    (holding initial interaction
    with Appellee was mere encounter, when three officers in
    plainclothes exited an unmarked vehicle, approached
    Appellee on public street and asked Appellee what he was
    doing and whether he had anything on his person that could
    harm officers; two brief questions constituted mere
    encounter, as there was no restraint of Appellee’s liberty,
    no physical force, and no show of authority or level of
    coercion, beyond officer’s mere employment, to convey
    demand for compliance or threat of tangible consequences
    from refusal).        Compare 
    Adams, supra
    (holding
    interaction between police officer and defendant was
    investigative detention, where officer would not allow
    defendant to leave his vehicle; officer did not simply request
    that defendant stay in his car; instead, officer physically
    closed car door and barred defendant’s exit; officer’s action
    of physically closing door as defendant opened it
    communicated demand to remain in car at that location;
    officer’s acts constituted type of escalatory factor that
    signals “seizure” by restraint of freedom); Commonwealth
    v. Livingston, 
    644 Pa. 27
    , 
    174 A.3d 609
    (2017) (plurality)
    (holding interaction between police officer and defendant
    was investigative detention, where defendant’s car was
    already parked on side of interstate highway, and officer
    pulled his patrol car alongside defendant’s car, with his
    emergency lights activated, ostensibly under community
    caretaking function, but officer was unable to articulate
    specific and objective facts to suggest defendant needed
    assistance); 
    Hampton, supra
    (holding interaction between
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    police officer and defendant was investigative detention,
    where defendant drove his vehicle from roadway into church
    field, and officer pulled her marked vehicle into field behind
    defendant’s car, effectively blocking his exit, as defendant’s
    vehicle was facing building so he could not travel forward).
    Importantly, “The issue of whether an individual has been
    seized is distinct from the issue of whether that seizure was
    reasonable.” 
    Hampton, supra
    at 458.
    
    Luczki, supra
    at 545-46.
    A challenge to the sufficiency of the evidence implicates the following
    legal principles:
    The standard we apply in reviewing the sufficiency of the
    evidence is whether viewing all the evidence admitted at
    trial in the light most favorable to the verdict winner, there
    is sufficient evidence to enable the fact-finder to find every
    element of the crime beyond a reasonable doubt. In
    applying [the above] test, we may not weigh the evidence
    and substitute our judgment for the fact-finder. In addition,
    we note that the facts and circumstances established by the
    Commonwealth need not preclude every possibility of
    innocence. Any doubts regarding a defendant’s guilt may
    be resolved by the fact-finder unless the evidence is so weak
    and inconclusive that as a matter of law no probability of
    fact may be drawn from the combined circumstances. The
    Commonwealth may sustain its burden of proving every
    element of the crime beyond a reasonable doubt by means
    of wholly circumstantial evidence. Moreover, in applying the
    above test, the entire record must be evaluated and all
    evidence actually received must be considered. Finally, the
    [finder] of fact while passing upon the credibility of
    witnesses and the weight of the evidence produced, is free
    to believe all, part or none of the evidence.
    
    Jones, supra
    at 120-21 (quoting Commonwealth v. Bullick, 
    830 A.2d 998
    ,
    1000 (Pa.Super. 2003)).
    Section 5104 of the Crimes Code defines resisting arrest or other law
    enforcement as follows:
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    § 5104. Resisting arrest or other law enforcement
    A person commits a misdemeanor of the second degree if,
    with the intent of preventing a public servant from effecting
    a lawful arrest or discharging any other duty, the person
    creates a substantial risk of bodily injury to the public
    servant or anyone else, or employs means justifying or
    requiring substantial force to overcome the resistance.
    18 Pa.C.S.A. § 5104.
    Instantly, testimony at the suppression hearing revealed Officers
    Rauchut and Sanchez were patrolling in Philadelphia in full uniform and in a
    patrol car, when they received a flash report at approximately 10:45 a.m. The
    report specified the suspect was a male with a gun, wearing a green t-shirt
    and blue jeans, and possibly high on narcotics. The report also indicated the
    suspect was near the 1200 block of Lycoming Street, a location the officers
    knew was an area of high drug activity and extreme violence. Approximately
    four minutes after receiving the flash report, the officers discovered Appellant
    standing in the middle of street on the 1300 block of Lycoming Street. The
    officers observed Appellant yelling at a man sitting inside a parked car;
    Appellant was sweating profusely, and his neck veins were visibly engorged.
    Appellant was wearing blue jeans and a navy-blue t-shirt, with a sweatshirt
    wrapped around his waist. Based upon his years of experience as a police
    officer and his observations of Appellant’s conduct, Officer Rauchut believed
    Appellant was under the influence of illicit drugs.
    During their initial interaction with Appellant, the officers approached in
    the patrol vehicle, with the vehicle’s lights and siren off. Appellant correctly
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    notes that the record shows the officers then exited their patrol vehicle before
    speaking to him. Once outside the vehicle, Officer Rauchut said to Appellant,
    “Hey, what’s going on, man? You want to come over to my car?” Appellant
    complied and approached the patrol vehicle. That was the sum and substance
    of their initial interaction.
    This initial interaction between the officers and Appellant was limited,
    informal, and carried all the hallmarks of a mere encounter. In detail, the
    interaction occurred in daylight and on a public street.       The interaction
    involved no lights, guns, intimidating movement or potent show of force,
    obstruction, or physical restraint. The officers were in full uniform and had
    arrived in a marked police vehicle, both of which merely identified their
    employment and conveyed no demand for compliance or threat of tangible
    consequences from refusal.      See Young, 
    E., supra
    . Whether the officers
    were inside or outside the patrol vehicle when they asked Appellant to
    approach them, is of no moment. In either circumstance, the officers’ conduct
    and limited contact with Appellant fell within the ambit of non-escalatory
    conduct; and their initial interaction with Appellant was a mere encounter.
    See 
    Au, supra
    ; 
    Newsome, supra
    ; Young, 
    E., supra
    .
    As Appellant approached the officers, Officer Rauchut observed a bulge
    on Appellant’s waist, around which Appellant had wrapped a sweatshirt.
    Based on his training and experience, Officer Rauchut believed the bulge was
    a gun. As a result, Officer Rauchut asked Appellant to place his hands on the
    - 16 -
    J-A06019-20
    vehicle so the officers could perform a protective search, but Appellant refused
    to comply. Although Officer Rauchut repeated the instruction several times,
    Appellant remained obstinate and did not heed the directive. When Officer
    Rauchut attempted to place Appellant’s arm behind his back to secure him,
    Appellant reached into his waistband and grabbed a gun. Officer Rauchut and
    Appellant struggled for nearly one minute until Officer Sanchez was able to
    remove the gun from Appellant. Meanwhile, Officer Durando approached to
    assist in apprehending Appellant. Based upon his observations and multiple
    years of police service, Officer Durando believed Appellant’s behavior
    exhibited signs of illicit drug use.
    The nature of Appellant’s encounter with the officers escalated when he
    approached the patrol vehicle and Officer Rauchut saw what he believed to be
    a gun in Appellant’s waistband. At that point, Officer Rauchut attempted to
    perform a protective search and asked Appellant to place his hands on the
    patrol vehicle.   Appellant’s prolonged refusal to comply prompted Officer
    Rauchut to grab Appellant’s arm in an attempt to place the arm behind
    Appellant’s back and effectuate the search. In addition to the appearance of
    a firearm on Appellant’s person, several factors supported Appellant’s
    detention, including: Appellant’s presence near the initial location referenced
    in the flash report; Appellant’s appearance roughly matching the flash report
    description (see Commonwealth v. Thomas, 
    179 A.3d 77
    (Pa.Super. 2018)
    (providing reasonable suspicion may arise even when suspect does not match
    - 17 -
    J-A06019-20
    flash report description exactly)); Appellant’s standing in the middle of the
    road yelling at a person inside a parked car, along with his agitated and sweaty
    physical condition leading Officer Rauchut to believe Appellant was under the
    influence of drugs; Appellant’s apparent drug use and possession of a firearm
    matching the flash report of an individual with a gun high on narcotics; and
    Appellant’s presence in an area known for high drug activity and extreme
    violence. Under the totality of the circumstances, the officers had reasonable
    suspicion to search Appellant for a firearm on his person. See 
    Foglia, supra
    ;
    Young, 
    R., supra
    ; 
    Jones, supra
    . Additionally, Appellant’s interaction with
    the police escalated further when Appellant pulled a gun out of his waistband.
    Appellant’s possession of a gun in a high crime area, along with his reaching
    for and holding it while the officers were attempting to search him, gave rise
    to probable cause. See 
    Thompson, supra
    . Upon our independent review of
    the totality of the circumstances, we conclude the record supports the court’s
    decision to deny Appellant’s suppression motion.         See 
    Luczki, supra
    ;
    
    Clemens, supra
    .
    Regarding Appellant’s related sufficiency challenge, the police lawfully
    arrested Appellant, for the reasons we have already discussed. Therefore,
    Appellant’s sufficiency claim merits no relief. See 
    Jones, supra
    ; 18 Pa.C.S.A.
    5104. Accordingly, we affirm.
    Judgment of sentence affirmed.
    President Judge Emeritus Stevens joins this memorandum.
    Judge Stabile concurs in the result.
    - 18 -
    J-A06019-20
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 4/6/2020
    - 19 -
    

Document Info

Docket Number: 343 EDA 2018

Filed Date: 4/6/2020

Precedential Status: Precedential

Modified Date: 4/6/2020